101 Mo. 644 | Mo. | 1890
J. R. Hayden brought this- action of replevin against Christian Burkemper to recover eighteén hundred shocks of wheat, alleged to be of the value of eight hundred dollars.
There is no dispute as to the facts. Plaintiff sold two hundred and forty acres of land to one Cambrón on the tenth of - September, 1882. Cambrón, at the same time, gave plaintiff a deed of trust on the land to secure seven notes, one for fifty-five hundred dollars, due in five years, one for two thousand dollars, due in three years, and five for three hundred and ninety-five dollars each, being annual interest notes. On the tenth of September, 1884, Cambrón sold the land to defendant, who assumed .payment of the notes as part of the purchase price. Defendant paid plaintiff seven hundred and eight dollars on the fifth of January, 1886, tobe applied on the two interest notes first maturing, but he made no other payments. Plaintiff assigned the two thousand dollars to Mrs. Stahlschmidt, and transferred the fifty-five-hundred-dollar note to Dyer as collateral security. Plaintiff frequently urged defendant to pay the notes which were due, and defendant as often promised to do so, but never fulfilled his promises. Matters stood in this shape on the fourth of June, 1887, when the land was sold under the deed of trust and Dyer became the purchaser.
Defendant took possession of the land at the date of his purchase, and at the time of the trustee’s sale had sixty-five acres in wheat which was nearly ripe. Dyer sold, the growing crop of wheat to plaintiff, and gave him a bill of sale therefor. Plaintiff and defendant both claimed the wheat after the trustee’s sale, but defendant being in possession cut it, and hence this suit.
The case presented by this record falls within plain and very well-settled principles of law. The deed of trust was in effect a mortgage. The defendant having purchased the land subject to the deed of trust thereon stood in the position of a mortgagor in possession. The case then is simply this : The mortgage was foreclosed by a sale thereunder, while the mortgagor was in possession and the owner of the growing wheat sown and owned by him ; and the question is, to whom does the wheat belong? It was held by this court years ago that a conveyance of land carried the crop of wheat growing upon it, owned by the vendor. Growing wheat, it was held, is a part of the freehold and passes along with the land on which it is sown. McIlvaine v. Harris, 20 Mo. 458. As between an executor and a devisee, a devise of land carries with it crops growing upon the land, owned by the testator. Pratt v. Coffman’s Ex’r, 27 Mo. 425. These cases are cited with approval in Steel v. Farber, 37 Mo. 72. So, too, the purchaser of mortgaged premises at a foreclosure sale is entitled to the crops which were sown by the mortgagor, and were growing upon the land at the date of the sale. 2 Jones on Mort., sec. 1658. And this for the reason that under such circumstances growing crops are accessories to the land. The rule of law that annual crops are treated as personal property for the purposes of a sale of them separate from the land does not affect this case. The purchaser at the trustee’s sale became the owner of the growing wheat as against the mortgagor, and he had the right to, and did, sell it to the plaintiff. On the undisputed facts, the judgment of the trial court is right, so that it is unnecessary to speak of the instructions.